General Terms and Conditions for Business Transactions 92
1. Scope
These terms are applicable to all deliveries and services rendered by Cosmos-Alkoholtester GmbH.
2. Terms of Payment, Set-off, Right of Retention
2.1. In the case that deliveries and services are rendered by Cosmos-Alkoholtester GmbH to foreign countries, payment will be exclusively effected by irrevocable and confirmed Letter of Credit at a major German bank in 23795 Bad Segeberg, payable on presentation of the documents at this very major bank in favor of Cosmos-Alkoholtester GmbH.
2.2. Bills, checks and other means of payment will only be accepted for reasons of fulfillment. The day at witch the amount is actually available for Cosmos-Alkoholtester GmbH will be considered in-payment day fort these means of payment
2.3. Discounting, collection and other expenses will at any rate be charged to the customer.
2.4. Set-off and right of retention can only be claimed with respect to such claims which are non-controversial and legally established.
2.5. in case of compensation deliveries, 10 % of the goods value will, in addition to the replacement sum, be subject to taxation as previous goods value, as laid down in the turnover law.
3. Dispatch, Packing and Devolution
3.1. the costs for dispatch and transport will be charged to the customer in default of special agreement. This is also applicable to the packing which will be performed to the best of Cosmos-Alkoholtester GmbH experience.
3.2. In case that delivery is made free of charge, the risk passes over to the customer after the product has left the factory. Should delivery prove impossible, without Cosmos-Alkoholtester GmbH being at fault, the risk passes over to the customer together with notice of readiness for delivery. Should Cosmos-Alkoholtester GmbH carry out installation and initial operation of the article delivered as a part of the delivery contract, the risk passes over to the customer from the moment of operational readiness. Should operation not take place immediately following installation for reasons beyond the responsibility of Cosmos-Alkoholtester GmbH, the risk passes over to the customer following completion of installation. Should installation be delayed for reasons beyond the responsibility of Cosmos-Alkoholtester GmbH the risk passes over to the customer fort he duration of said delay.
4. Delivery and Time of Delivery
4.1. Weights and dimensions given in leaflets and bids are approximate only. The right is reserved to effect reasonable modifications and design changes.
4.2. Any reference pertinent to technical standards is merely a description of performance. The guarantee for a certain quality is only provided for if this is confirmed in writing by Cosmos-Alkoholtester GmbH.
4.3. Incomplete performance or partial services respectively, shall be regarded as a separate business transaction and do not entitle the customer to claim compensation on account of non-fulfillment of the entire commitment, or to withdrawal from the contract with the exception, that partial fulfillment of the contract is of no interest fort he customer. In case of incomplete or delayed performance or non-performance, the customer merely has the right of withdrawal, but not fort he claim of damage, unless incomplete or delayed performance or non-performance are caused by Cosmos-Alkoholtester GmbH willfully or grossly negligently. Observance of the delivery period presupposes the customer’s duties under the contract. If Cosmos-Alkoholtester GmbH in default of performance, the period of grace granted by the customer must give adequate consideration to the capabilities of Cosmos-Alkoholtester GmbH.
4.4. The period of performance must be duly extended in case of trade disputes, particularly in case of strikes, lockouts or other unpredictable obstacles which are beyond the will of Cosmos-Alkoholtester GmbH, unless delivery or performance are thus rendered impossible. In the event that delivery should be impossible , Cosmos-Alkoholtester GmbH is released from the obligation to fulfill the contract. If the period of delivery has been extended or Cosmos-Alkoholtester GmbH is released from the obligation of fulfillment, the customer will not have the right to claim for compensation ort he right of rescission on account of such reasons.
5. Right of Rescission
Cosmos-Alkoholtester GmbH reserves the right of rescission from the contract in the event that any of its contractors fails to deliver ordered items or parts in the stipulated period under the provision, that the deficiency of such parts renders fulfillment of the contract towards the customer impossible.
6. Retention of Title
6.1. The item of delivery remains the property of Cosmos-Alkoholtester GmbH until all amounts owed, for whatever consideration, have been paid by the buyer and until all bills and cheques issued to Cosmos-Alkoholtester GmbH as payment have been honored, even if such payment has been made in settlement of a specifically indicated account. In case of a current account , the reserved property is considered a security fort he balance due to Cosmos-Alkoholtester GmbH. Any treatment or processing of the reserved goods is made on behalf of Cosmos-Alkoholtester GmbH, without charge and without any obligation on the part of Cosmos-Alkoholtester GmbH, such that Cosmos-Alkoholtester GmbH is considered the manufacturer. That means Cosmos-Alkoholtester GmbH retains the title to the products at any time and stage of processing. In the event that the goods under reserve are processed by the customer along with other goods not belonging to Cosmos-Alkoholtester GmbH, the latter retains the joint proprietary right to the new item in the proportion of the invoiced value of the reserved goods to the other processed goods at the time of processing. The finished product resulting from such processing is subject to the same proprietary rights as the goods delivered by Cosmos-Alkoholtester GmbH. For the purpose of these conditions these goods are thus subject to the title retained by Cosmos-Alkoholtester GmbH.
6.2. Any outstanding amounts due to the customer as a result of a resale of the reserved goods are assigned herewith to Cosmos-Alkoholtester GmbH in order to the secure all open accounts in connection with this business transaction, no matter whether the reserved goods are resold without or after processing, ore whether they are resold to one or more buyers. Even after assignment, the customer is entitled to withdraw these assigned open accounts The right of Cosmos-Alkoholtester GmbH to withdraw the assigned open accounts itself remains unaffected. The customer’s right of withdrawal becomes invalid should he become insolvent or should petition in bankruptcy be filed against his estate.
6.3. The customer is entitled our authorized to resell the reserved goods on the basis of a sale contract, manufacturing contract, contract of location, or any other contract only if the invoice value resulting from such a contract is assigned to Cosmos-Alkoholtester GmbH. The customer in not authorized to pledge or assign as security or otherwise dispose of the reserved goods. If requested by Cosmos-Alkoholtester GmbH, the customer shall be obliged to modify any third party of the assignment in order to effect direct payment to Cosmos-Alkoholtester GmbH by the third party.
6.4. If the value of the securities existing in favour of Cosmos-Alkoholtester GmbH exceeds the total amount due to Cosmos by more than 25%, then Cosmos-Alkoholtester GmbH shall be obliged, at the customer’s request or at the request of any third party which may have been adversely affected by Cosmos’s excess security, to release such security at Cosmos’s choice.
6.5. The customer has to inform Cosmos without delay of any seizures, attachments or similar measures by a third party.
7. Notification of Defects and Acceptance of Products, Articles and Goods
7.1. The articles delivered must be unpacked by the customer immediately following receipt in order to establish any damage caused during transport and shipment. Should any such damage be establish a protocol of damage shall be immediately prepared as a security for any possible claim for damages against the transport contractor ( postal authorities, railway company, forwarding agent etc. ). Claims can only be made within one week following receipt of the articles or products, unless the fault is not obvious. The customer has to notify Cosmos-Alkoholtester GmbH immediately of any defects relative to performance of services in order to maintain his claims for free repair.
7.2. Should the customer be prevented to accept the products due to strikes or lockouts, the period of acceptance and for claims shall be adequately extended in accordance with the preceding provision.
8. Warranty
8.1. Cosmos-Alkoholtester GmbH provides a warranty for all services performed and all product manufactured as well as for plants installed by it, in accordance following regulations.
8.2. The period of warranty is 12 month from the day of performance of services, for products delivered from the day of delivery ex factory, for plants or parts thereof from the day of delivery. A warranty period of 24 months is provided for buildings. Notwithstanding hereof is the warranty period provided for motor engines of all types, pumps compressors and electrochemical sensors 6 months from the day of delivery ex-factory. In case of delivered products warranty is exclusively related to faultlessness at the time of dispatch from Cosmos-Alkoholtester GmbH, in case of performance of labour to faultlessness at the time of termination of such labour or acceptance, respectively. This also applies to rubber, plastic, glass or ceramic parts.
8.3. Warranty is provided by free repair, or, if deemed appropriate by Cosmos-Alkoholtester GmbH , by compensation delivery. In the event that free repair or compensation delivery should fail, the customer is free to decide upon either reduction of payment or withdrawal from the contract.
8.4. If the customer has claimed warranty within 6 months or 24 months respectively where buildings are concerned, calculated from the day the claim was established, Cosmos-Alkoholtester GmbH is obliged to take over all expenses involved in the free repair, in particular transport- and road fares and labour costs, with the exception, that the product delivered is located abroad, or that the fore mentioned expenses are increased due to the fact that the delivered product was subsequently transferred to a location other than the legal residence or commercial domicile of the customer , in so far as the transfer does not conform with the actual terms for use of the products.
8.5. The customer is obliged to further free repair by Cosmos-Alkoholtester GmbH for reasons of fulfillment of warranty, and shall, upon request dispatch the delivered product to Cosmos-Alkoholtester GmbH or to a workshop which will from case be defined by Cosmos-Alkoholtester GmbH. Should the customer be in default of this obligation, Cosmos-Alkoholtester GmbH will be released from any warranty.
8.6. Warranty can not be based on any defects caused by interference of the customer or third parties. Warranty will also expire if the product in question has not been stored or maintained in accordance with the enclosed instructions.
8.7. If Cosmos-Alkoholtester GmbH performs any warranty services, the initial period of warranty is interrupted for such period that the user is inhibited to make use of the Product due to the activities of Cosmos-Alkoholtester GmbH.
8.8. All warranty rights including claims for repairs and compensation are excluded in the case of second-hand equipment.
9. Liability
9.1. Contractual or extra – contractual claims for damage of any kind shall be excluded unless Cosmos-Alkoholtester GmbH has acted deliberately or grossly negligently. Liability for indirect damage or any type, especially injuries to persons, damage to property and failure in operation as well as so-called consequential damage shall be expressly excluded under the above mentioned presupposition.
10. Copyright
Cosmos-Alkoholtester GmbH reserves the exclusive right to proprietary and copyright exploitation of all drawings, technical details and other know-how information; these may not be made available to third parties.
11. Safety Regulations
Attention is drawn to the relevant national safety regulations or the Accident-Prevention-Regulations. In case that products are delivered to foreign countries, the relevant safety regulations, in particular those pertinent to approval, maintenance and handling of delivered products must be complied with alone by the customer. The customer is obliged to release Cosmos-Alkoholtester GmbH from any claims resulting from such regulations.
12. Place of Performance, Place of Jurisdiction, Applicable Law
12.1. For any obligations and liabilities arising from the purchase contract or any possibly declared rescission there from, Bad Segeberg as the headquarters of Cosmos-Alkoholtester GmbH, shall be the place of performance. Place and performance for labour and services is the site where such work was performed.
12.2. The exclusive place of jurisdiction is Bad Segeberg. Cosmos-Alkoholtester GmbH shall however, at its own discretion , be authorized to initiate suitable action with the Court in and for the place of residence of the customer.
12.3. The law of the Federal Republic of Germany shall be applicable excluding the Uniform Laws (Formation of Contracts and International Sale) of The Hague.
13. Final Terms
Deviations from the above Terms and Conditions for Business Transaction require in all cases a written and legally signed confirmation by Cosmos-Alkoholtester GmbH for validity. Written or printed terms and conditions of the customer differing from the foregoing Terms and Conditions shall only be binding, if Cosmos-Alkoholtester GmbH has expressly confirmed and accepted them in writing.
Cosmos-Alkoholtester GmbH